Kansas Pacific Railway Co. v. Pointer

The opinion of the court was delivered by Valentine, J.: This was an action brought by Pointer against the Kansas Pacific Railway Co., for injuries claimed to have been caused by the train of the defendant below, knocking down and running over the plaintiff while he was walking on the railroad track of the defendant in the city of Leavenworth. The record of the case is very voluminous, notwithstanding that it is a “case made” under the statutes for the supreme court, and everything expunged therefrom that was thought to be unnecessary for the determination of the questions involved in the case in this court. There are .seventy-six exceptions taken by the defendant below (plaintiff in error,) to the rulings of the district court, and several ■of said exceptions involve more than one question, some of them in fact involve many questions; but we suppose that it is hardly expected that we shall express an opinion upon ■each of the exceptions taken, or upon each of the questions involved therein separately. If our opinion shall be broad .enough to include all the questions raised, without mentioning them in detail, that will be sufficient. I. The court below committed several errors, but some of the errors committed were immaterial, and will not therefore, •as has been well’settled, require a reversal of the judgment. Civil code, §§.140, 304. We decided in Seibert v. True, 8 Kas., 53, that “ Error in admitting incompetent evidence, which is also immaterial, and clearly does not tend to prejudice the party objecting thereto, is not cause for reversing the judgment.” And we have repeatedly decided, that, where a question is asked concerning a certain matter, and the court — 627 — permits the question to be answered, and the witness in answering the same says substantially that he does not know anything about the matter, and does not give any evidence concerning the same, it is immaterial whether the court erred or not in permitting the question to be answered: Gulf Rld. Co. v. Owen, 8 Kas., 410; City of Wyandotte v. Noble, 8 Kas., 444; City of Atchison v. King, ante, 550. For the manner of getting rid of an improper answer to a proper question, see Hynes v. Jungren, 8 Kas., 391. II. Where a question is asked and objected to, and no reason is given for the objection, the court may as a rule, overrule the objection without considering whether the question is objectionable or not, and without committing any error by so doing. 2 Kas., 199, 266; ante, 176, 186. III. The objection to evidence contained in a deposition, except an objection for ineompetency or irrelevancy, must be made in writing, and filed before the commencement of the trial, or the objection cannot be entertained by the court. Code, §§ 363, 364. IV. An objection for ineompetency does not raise any question as to whether a question put to a witness is leading or not. The only way to raise such a question is to object to the question because it is leading. V. After a witness has been examined in chief, and cross-examined by the other party, the court may still in its discretion allow the party introducing him to ask further questions in chief, and upon new matter—the opposite party of course having the right to cross-examine upon the new matter. 6. Place where injury occurs. Public street. wh party is passer. 7. Nature and extent of injuries. 8. Means and condition of plaintiff. VI. Whether the allegations of the petition were sufficient or not we do not think it is now necessary to .decide; for the attention of the plaintiff having now been called to the supposed defects, he may amend before another trial. There may be some question about the sufficiency of J x * the petition; but considering it for-the purposes of the decision of the case in this court as sufficient, we would say, that the plaintiff had a right to show — 628 — that the place where he was injured was on a public street of Leavenworth; and if he could not show that it was a public street in law, he still had the right to show that it was a public street in fact. And for this purpose if for no other he had a right to show that the public travel was on or over this ground, and to show that such travel was there with the knowledge and consent of the railway •,company. If he should show that the place where the injury occurred was on a public street, either in law or fact, he would not be such a trespasser as would relieve the railway company from exercising reasonable and ordinary care and diligence towards him. In fact, he would not be a trespasser at all. The railway company in such a case would be bound .to run its trains with reference to him, and to every other person who might be rightfully occupying the street. Such persons would have the same right to be on the street as the railway company. In fact, in this case the legal right of the railway company, and that of the public, to use this ground as a street, seems to be about equal. Both derive their right from a city ordinance. The public used this ground for a street, however, long before the railroad was built. If the plaintiff and the railway company each had a right to use said ground, then it was incumbent on each alike to use ordinary care and diligence to prevent and avoid injuries. The plaintiff then had a right to show anything on the part of the defendant that would show a want of proper care, and anything on his own part that would show that he used due care; for if the defendant did exercise ordinary care, or if the plaintiff did not exercise such care, he could not recover. On the other hand, the railway company had a right to show that it exercised the proper care, and that the plaintiff did not do so. If it should be shown on a retrial of this case that the plaintiff had no right to be on the ground where the injury was received, the law of- the case with respect to care and diligence would be very different from what we have stated it. The railway company would not then be bound to run their trains with reference to persons who might be — 629 — on the track. The railway company would not then. be bound to anticipate persons who might be on the track. The plaintiff also had a right (with proper allegations 7 . . . 0 v 11 0 m his petition,) to show by proof the nature and extent of his injuries, his sufferings, the length of time that he was disabled, the value of his time, his expenses in being-cured, his condition with respect to the injuries at the time of the trial, his prospective condition, or rather the effect the injuries will in all probability have upon him in the future; and this prospective effect of the injuries may bo proved by the professional opinion of the physician and surgeon who attended him, or by any other competent physician and surgeon who has made a sufficient examination of the injuries. Of course it ivas incompetent, for the purpose of showing-the injuries, or their character or extent, or for the purpose of enhancing the damages which the plaintiff expected to recover, for the plaintiff to prove his pecuniary or social condition, whether he was rich or poor^ married or single, or whether he had a family or not. Shaw v. Boston & Worc. Rld. Co., 8 Gray, 46.- Neither of these could throw any light upon the. character or extent of the injuries, nor could either tend in any way to show how much the plaintiff was damaged. Neither could in any way enhance or diminish the amount for which the plaintiff should recover. 9. Hearsay evidence; prejudicial tacompetent. VII. The testimony of witness Butts, concerning a conversation had between himself and Hamilton, was clearly fend unquestionably inadmissible, and was highly prejudicial the rights of the defendant. One of the main questions in the case.was, whether the defendant j.|ir0Ug}1 £he negligenee 0f ns servants or agents caused the injuries' complained of. • The defendant claimed that its servants and agents- took all necessary , precaution to avoid injuries to any one who' might be upon the track, and that its servants and agents were not aware of the presence of the plaintiff on the- track until after the accident occurred. On the. other hand, the plaintiff claimed that1 the servants and agents of the company did not take the necessary pre — 630 — caution to avoid injuries; that they did know, and should have known, of the plaintiff’s presence on the track. Hamilton was the engineer of the defendant who had charge of the engine that moved the train that run over the plaintiff and caused the injuries. Butts had no connection whatever with the Kansas Pacific Railway Company. The conversation between Butts and Hamilton was on the next morning after the accident occurred. Butts testified concerning it among other things as follows: “He (meaning Hamilton) told me that hé saw a man going behind the train just before, the accident happened, and he took no thought of it at the time, and pretty soon afterwards there were some men hallooing to him to stop.' He thought they .were a-fooling him,, and he did not hold up; finally he stopped. The next he saw of the man was between the fire-hox and the tank.” The train' backed on the plaintiff. There is no principle to be found anywhere in the law under which such evidence could be admitted. The only grounds upon which the defendant in error claims it was admissible is,'(and we use the exact words of his counsel’s brief,) as follows: “A question will be mad'e on the introduction óf the evidence of witness Butts, as to the declarations of John Hamilton, the engineer Of the defendant below. Hamilton was in the employ of the defendant below, and' plaintiff was compelled to call him. We do not claim that it was competent to offer this evidence to impeach him, but we do claim that it appearing that he was, to some extent, under the control of the defendant below, we liad a right to prove that we were' surprised in Ills evidence. It being competent to show that we were so disappointed in his evidence, the court could exercise its discretion as to the time when it could be shown that we were-so surprised,' ’and the exercise of such discretion is not error.” It is true that plaintiff had previously called Hamilton as a, witness, but it does not appear that he “was compelled to call him.” There were many other witnesses who saw the transaction, and"whom the plaintiff could, have called, and some of whom he did call. It docs not appear that Hamilton was. — 631 — to any extent “under the control of the defendant below” while lie was testifying. And it does not appear that the plaintiff or his counsel ever thought or supposed that they were “surprised” at the testimony of Hamilton until the ease was brought to this court. And there is nothing appearing in the record, or elsewhere, that tends to show that they were in .fact so surprised. No such claim seems to have been made in the court below, and there is nothing in this court upon which such a claim could be founded. The testimony of Butts concerning said conversation ivas pure, naked, and simple hearsay testimony. The court erred in admitting it, and for said error the judgment in this case must be reversed. Luby v. Hudson River Rld. Co., 17 N. Y., 131; Bellefontaine Rld. Co. v. Hunter, 33 Ind., 335. VIII. There are .other questions raised in' this case, but Ave do' not think it is necessary to' decide them. They Avill probably not arise again. Ve Avoijld lioAvever refer to the following recent decisions of' this court Avith reference to questions Avhich' have been raised'in this case, and Avhich may possibly be raised again. First: With reference.to exceptions to instructions to the jury, see City of Wyandotte v. Noble, 8 Kas., 444; K. P. Rly. Co. v. Nichols & Kennedy, ante, 235; City of Atchison v. King, ante, 550; Sumner v. Blair, ante, 521. Second: ‘With reference to verdicts, their form, etc., see National Bank v. Peck, 8 Kas., 660; Copeland v. Majors, ante, 104; Hazzard Powder Co. v. Viergutz, 6 Kas., 471; Arthur v. Wallace, 8 Kas., 267; K. P. Rly. Co. v. Reynolds, 8 Kas., 623. The judgment of the court beloAV is reversed, and new trial ordered. All the Justices concurring.